The legality of the Israeli occupation of
Palestine
__NOTOC__
Palestine may refer to:
* State of Palestine, a state in Western Asia
* Palestine (region), a geographic region in Western Asia
* Palestinian territories, territories occupied by Israel since 1967, namely the West Bank (including East ...
, which has continued since 1967 and is the longest
military occupation
Military occupation, also known as belligerent occupation or simply occupation, is the effective military control by a ruling power over a territory that is outside of that power's sovereign territory.Eyāl Benveniśtî. The international law ...
in modern history, is a subject that has received much less attention than violations of
international humanitarian law
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by prot ...
(IHL) and
international human rights law
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...
(IHRL) that have occurred during the occupation. Multiple
United Nations General Assembly
The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...
resolutions have described the continuing occupation as illegal. The general thrust of international law scholarship addressing this question has concluded that, regardless of whether it was initially legal, the occupation has become illegal over time. Reasons cited for its illegality include use of force for impermissible purposes such as
annexation
Annexation (Latin ''ad'', to, and ''nexus'', joining), in international law, is the forcible acquisition of one state's territory by another state, usually following military occupation of the territory. It is generally held to be an illegal act ...
, violation of the Palestinian right to
self-determination
The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a ''jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It stat ...
, that the occupation itself is an illegal regime "of alien subjugation, domination and exploitation", or some combination of these factors.
Eyal Benvenisti
Eyal Benvenisti ( he, איל בנבנשתי; born 1959) is an attorney and legal academic, and Whewell Professor of International Law at the University of Cambridge. He was formerly Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv Unive ...
suggested that refusal by an occupier to engage in good faith with efforts to reach a peaceful solution should not only be considered illegal but as outright annexation. International law scholar
Ralph Wilde states that "The common way of understanding the extended duration of the occupation... is a prolonged violation of international law". However, Israel denies that it is occupying Palestine and maintains that its presence is legal.
On 20 October 2022, the
Permanent United Nations Fact Finding Mission on the Israel Palestine conflict released a report to the United Nations General Assembly, calling on the Security Council to end Israel’s "permanent occupation" and on individual UN member states to prosecute Israeli officials. The report found "reasonable grounds" to conclude that the occupation "is now unlawful under international law due to its permanence" and Israel's "de-facto annexation policies." Israeli prime minister
Yair Lapid
Yair Lapid ( he, יָאִיר לַפִּיד, transliterated: , ; born 5 November 1963) is an Israeli politician and former journalist who has been serving as the 14th prime minister of Israel since 1 July 2022. He previously served as the alt ...
said the report is "biased, false, inciting and blatantly unbalanced" and tweeted that "Not all criticism of Israel is anti-Semitism, but this report was written by anti-Semites … and is a distinctly anti-Semitic report". The
International Court of Justice
The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
(ICJ) accepted a request from the
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
(UN) as to the
Legal consequences arising from the policies and practices of Israel in the occupied Palestinian territory including East Jerusalem. The court has set 25 July 2023 for presentation of written statements and 25 October 2023 for subsequent written comments on the statements.
Background
The
Israeli occupation of Palestine
Israeli-occupied territories are the lands that were captured and occupied by Israel during the Six-Day War of 1967. While the term is currently applied to the Palestinian territories and the Golan Heights, it has also been used to refer to a ...
began in 1967 is the longest military occupation in modern history. Since the
Israeli disengagement from Gaza
The Israeli disengagement from Gaza ( he, תוכנית ההתנתקות, ') was the unilateral dismantling in 2005 of the 21 Israeli settlements in the Gaza Strip and the evacuation of Israeli settlers and army from inside the Gaza Strip.
Th ...
in 2005, it is the prevailing opinion that Gaza is still under occupation according to international law; the
Israeli occupation of the West Bank
The Israeli occupation of the West Bank began on 7 June 1967, when Israeli forces captured and occupied the territory (including East Jerusalem), then occupied by Jordan, during the Six-Day War, and continues to the present day. The status o ...
is an ongoing occupation. Israel has argued that its rule in the Palestine
is not occupation, but also because neither the Hague Regulations nor the GCIV limits the duration of the occupation or requires the occupant to restore the territories to the sovereign before a peace treaty is signed, cites traditional occupation law as justification for the legality of its actions. According to many interpretations, Israel has
purportedly annexed parts of Palestine, including
East Jerusalem
East Jerusalem (, ; , ) is the sector of Jerusalem that was held by Jordan during the 1948 Arab–Israeli War, as opposed to the western sector of the city, West Jerusalem, which was held by Israel.
Jerusalem was envisaged as a separat ...
, but such
annexation is illegal under international law under the
prohibition on the acquisition of territory through force
Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcoholic ...
. Its treatment of other areas of the
West Bank
The West Bank ( ar, الضفة الغربية, translit=aḍ-Ḍiffah al-Ġarbiyyah; he, הגדה המערבית, translit=HaGadah HaMaʽaravit, also referred to by some Israelis as ) is a landlocked territory near the coast of the Mediter ...
has been described as a ''
de facto
''De facto'' ( ; , "in fact") describes practices that exist in reality, whether or not they are officially recognized by laws or other formal norms. It is commonly used to refer to what happens in practice, in contrast with ''de jure'' ("by la ...
'' annexation and "creeping annexation" showing an ultimate intention to permanently take over the territory.
The first report of the
Permanent United Nations Fact Finding Mission on the Israel Palestine conflict released on 7 June 2022, said that the root cause of the problems lay in "perpetual occupation" with no intent to end it and that Israel wanted "complete control" over the occupied area. On 11 November 2022, the
United Nations General Assembly Fourth Committee
The United Nations General Assembly Fourth Committee (also known as the Special Political and Decolonization Committee or SPECPOL or C4) is one of six main committees of the United Nations General Assembly. It deals with a diverse set of politic ...
passed a resolution 98 to 17 with 52 abstentions to request an
International Court of Justice
The International Court of Justice (ICJ; french: Cour internationale de justice, links=no; ), sometimes known as the World Court, is one of the six principal organs of the United Nations (UN). It settles disputes between states in accordanc ...
opinion on how "Israeli policies and practices "affect the legal status of the occupation, and what are the legal consequences that arise for all states and the United Nations from this status." The resolution, condemned by Israel, will go for a final assembly vote before the end of the year.
Use of force
According to international law, annexation is not an acceptable motive for the use of force in international law, nor is it legal to acquire territory through the use of force. An occupation maintained for the purpose of territorial aggrandizement is no different from an explicit annexation according to international law—both are illegal.
Israel therefore may not annex the Palestinian territories, nor may it continue the occupation because of desire to incorporate these territories. Israel states that the occupation is justified as self-defense, but there has been little legal analysis of the occupation in relation to laws governing the use of force. For the occupation to be legal, it would need to be a justified and proportional use of force when it began and continuously from 1967 to the present, in self-defense of the original threat or a comparable threat. The legality of using force in self-defense against non-state actors is disputed. Many international law experts and states doubt that extended occupations can ever be legal according to international law. Illegal occupation constitutes an act of aggression in international law and could also be a
crime of aggression
A crime of aggression or crime against peace is the planning, initiation, or execution of a large-scale and serious act of aggression using state military force. The definition and scope of the crime is controversial. The Rome Statute contains an ...
.
Some commentators have proposed that an occupation that is initially legal will remain so until a
peace treaty
A peace treaty is an agreement between two or more hostile parties, usually countries or governments, which formally ends a state of war between the parties. It is different from an armistice
An armistice is a formal agreement of warring ...
is signed. A peace treaty however is not synonymous with the absence of a threat justifying the use of force in self-defense, without which military aggression becomes illegal. According to Wilde, "it is not credible to regard the occupation as a necessary and proportionate means of ensuring Israel’s security" and therefore, the continuation of the occupation "has been and is unlawful under the law on the use of force". Many
United Nations General Assembly
The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six principal organs of the United Nations (UN), serving as the main deliberative, policymaking, and representative organ of the UN. Curr ...
resolutions have condemned the Israeli occupation of Palestine as a violation of international law and the
Charter of the United Nations
The Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organization. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the ...
.
Self-determination
The Palestinian right to
self-determination
The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a ''jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It stat ...
is internationally recognized. Regardless of whether a
Palestinian state
Palestine ( ar, فلسطين, Filasṭīn), officially the State of Palestine ( ar, دولة فلسطين, Dawlat Filasṭīn, label=none), is a state located in Western Asia. Officially governed by the Palestine Liberation Organization (PL ...
currently exists, the sovereignty in the occupied Palestinian territories belongs to the Palestinian people. International law scholar Ralph Wilde states, "given that the Palestinian people have not agreed that all or part of the
oPt is to be Israeli territory, the default requirement of the law of self-determination is that they should be immediately freed from the impediments to self-rule", including a speedy end to the occupation.
Other legal frameworks
The question of the legality of the occupation is largely separate from violations of
international humanitarian law
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war (''jus in bello''). It is a branch of international law that seeks to limit the effects of armed conflict by prot ...
(IHL) and
international human rights law
International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, ag ...
(IHRL) that have occurred during the occupation. It is also separate from
international criminal law
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetrati ...
including the occurrence of
war crimes and the
argument
An argument is a statement or group of statements called premises intended to determine the degree of truth or acceptability of another statement called conclusion. Arguments can be studied from three main perspectives: the logical, the dialectic ...
that Israel's policies constitute a
crime of apartheid
The crime of apartheid is defined by the 2002 Rome Statute of the International Criminal Court as inhumane acts of a character similar to other crimes against humanity "committed in the context of an institutionalized regime of systematic oppres ...
. According to Wilde, these violations of ''
jus in bello
The law of war is the component of international law that regulates the conditions for initiating war (''jus ad bellum'') and the conduct of warring parties (''jus in bello''). Laws of war define sovereignty and nationhood, states and territor ...
'' "just aggravate the illegality" of the occupation. Valentina Azarova writes that systematic violations of IHL and human rights are intertwined with the issue of prolonged occupation. Azarova also suggested that unlawfully prolonged occupations can also "be treated as manifestations of outlawed colonial practices of foreign
domination, political subjugation, and economic exploitation". An interpretive statement issued by the
United Nations Human Rights Committee
The United Nations Human Rights Committee is a treaty body composed of 18 experts, established by a 1966 human rights treaty, the International Covenant on Civil and Political Rights (ICCPR). The Committee meets for three four-week sessions per y ...
ruled that acts of aggression occasioning loss of life inherently violate the
right to life
The right to life is the belief that a being has the right to live and, in particular, should not be killed by another entity. The concept of a right to life arises in debates on issues including capital punishment, with some people seeing it as ...
guaranteed by the
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
.
Occupation law, as a branch of IHL, regulates the conduct of occupation but does not address the question of the legality of the occupation itself. In a 2005 paper,
Orna Ben-Naftali
Orna Ben-Naftali ( he, ארנה בן-נפתלי) is the rector of the College of Management Academic Studies and the Emile Zola Chair for Human Rights. She has previously served as dean of the Striks School of Law, College of Management Academic S ...
, Aeyal Gross, and Keren Michaeli argue that because occupation is intended to be temporary, a prolonged occupation would inherently violate occupation law. They rate the Israeli occupation of Palestine as illegal for this reason and others. According to Gross, a prolonged occupation also undermines the rule that sovereignty may not derive from occupation.
Overall assessments
In ''
European Journal of International Law
The ''European Journal of International Law'' is a quarterly law journal covering international law in a combination of theoretical and practical approaches. It also provides coverage of the relationship between international law and European Unio ...
'', Ardi Imseis argues that "Israel’s occupation has become illegal over time for being in violation of three ''
jus cogens
Jus may refer to:
Law
* Jus (law), the Latin word for law or right
* Jus (canon law), a rule within the Roman Catholic Church
People
* Juš Kozak (1892–1964), Slovenian writer
* Juš Milčinski, Slovenian theatre improviser
* Justin Jus Obo ...
'' norms of international law: the prohibition on the acquisition of territory through force, the obligation to respect the right of peoples to
self-determination
The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a ''jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It stat ...
and the obligation to refrain from imposing regimes of alien subjugation, domination and exploitation inimical to humankind, including racial discrimination".
In 2017,
Michael Lynk,
, said that the Israeli occupation was illegal. His successor,
Francesca Albanese
Francesca P. Albanese (born 1977) is an international lawyer and academic, an Italian national with two young children. She was elected for a three year term, renewable for a further 3 years.
An Affiliate Scholar at the Institute for the Study ...
, said that the occupation crossed a "red line of legality" because "according to international law, occupation is to be temporary, justified by military necessity and in the interest of the occupied people".
Consequences
According to Azarova, "Since the very presence of such occupying states in the occupied territory presents a threat to the indigenous civilian population of the occupied territory, the principal task of international law is to eliminate such unlawful situations through restitution of the occupied territory to the ''
status quo ante bellum
The term ''status quo ante bellum'' is a Latin phrase meaning "the situation as it existed before the war".
The term was originally used in treaties to refer to the withdrawal of enemy troops and the restoration of prewar leadership. When used ...
''". Azarova has encouraged European Union policymakers to uphold the legal obligation of
non-recognition Non-recognition is the practice and legal obligation not to extend diplomatic recognition to annexations or de facto states created through violation of international law. It is a counterpart to the rejection of right of conquest in modern interna ...
of violations of international law—including Israel's de facto annexation of the West Bank—and to "rethink a failed peace-making model".
Imseis states that if the occupation is an
internationally wrongful act, an immediate end to the wrong—rather than waiting for a negotiated compromise—would be the correct solution according to international law on state responsibility. Conducting negotiations while the illegal occupation is maintained, in his view, "could be abused by the more powerful party to consolidate its illegal actions under a cloak of legitimacy provided by the UN". According to the principle of ''
ex injuria jus non oritur'', the violator of international law may not derive a benefit from its violations.
Focus on the methods of occupation and individual IHL and IHRL has been criticized for overlooking the larger question of whether the occupation itself is legal, or even legitimizing the occupation itself. The overall focus on the occupation has been criticized by Wilde and Hani Sayed as reinforcing the
two-state solution
The two-state solution to the Israeli–Palestinian conflict envisions an independent State of Palestine alongside the State of Israel, west of the Jordan River. The boundary between the two states is still subject to dispute and negotiation ...
paradigm, and erasing important political questions such as the consequences of the
1948 Palestinian exodus
In 1948 Estimates of the Palestinian Refugee flight of 1948, more than 700,000 Palestinians, Palestinian Arabs – about half of prewar Mandatory Palestine, Palestine's Arab population – Causes of the 1948 Palestinian exodus, were expelled ...
,
Palestinian refugees
Palestinian refugees are citizens of Mandatory Palestine, and their descendants, who fled or were expelled from their country over the course of the 1947–49 Palestine war (1948 Palestinian exodus) and the Six-Day War (1967 Palestinian exodu ...
, the status of Palestinian residents of Israel, and other issues relevant to the Israel–Palestinian conflict.
See also
*
International law and the Arab–Israeli conflict
The International law bearing on issues of Arab–Israeli conflict, which became a major arena of regional and international tension since the birth of Israel in 1948, history of the Arab–Israeli conflict, resulting in several disputes between a ...
References
Citations
Sources
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Further reading
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*{{cite book , last1=Milano , first1=Enrico , title=Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality And Legitimacy , date=2006 , publisher=Martinus Nijhoff Publishers, chapter= Defining the Boundaries of Legality: Unlawfulness of Territorial Situations , isbn=978-90-474-1774-3
External links
The International Community and Israel: Giving Permission to a Permanent Occupation
Legality of wars
Israeli-occupied territories
Israeli occupation of the West Bank